NARAL Pro-Choice Washington PAC’s 2011 Power of Choice Luncheon featured keynote speaker Kathryn Kolbert. Kathryn Kolbert is Director of the Athena Center for Leadership Studies at Barnard College and was the attorney who argued Planned Parenthood v. Casey before the Supreme Court in 1992. Planned Parenthood v. Casey was a seminal case which protected the constitutional right to an abortion yet scaled back the constitutional protections provided by Roe v. Wade.
I sat down with Ms. Kolbert last Monday after her inspirational speech that elicited cheers from the capacity audience at the Conference Center at Convention Place in downtown Seattle.
We discussed the ongoing federal attacks and state legislative assault on reproductive rights across the country. I was eager to get her thoughts on the suggestion by some in the media that pro-choice advocates are not doing enough to combat these legislative attacks through litigation. The fear being that the current composition of the U.S. Supreme Court would most certainly further dismantle the legacy of Roe v. Wade as well as Planned Parenthood v. Casey.
Ms. Kolbert disagrees with the idea that pro-choice advocacy organizations should automatically challenge the some of the more egregious legislation coming out of more and more state legislatures across the country. Rather, she thinks the decision to litigate must be handled on a case-by-case basis, looking at the specific harms of the law, what can be proved in a court of law, and whether there are doctors or affected women who have standing to challenge it.
She also thinks that the laws affecting late abortion, such as the 20 week abortion bans that have been enacted in Indiana, Nebraska, Kansas, Idaho, and Oklahoma which affect only a very few people are the most difficult to challenge and pose the greatest risks should the court challenge reach the Supreme Court. Ms. Kolbert agrees with Nancy Northup, the president of the Center for Reproductive Rights, that it is necessary to be thoughtful and cautious when considering litigation.
In a recent blog post at RH Reality Check, Ms. Northup disagreed with the idea that pro-choice litigators are gun shy. She noted that recent commentary from Slate’s Dahlia Lithwick and MSNBC’s Rachel Maddow ignores the fact that the Center for Reproductive Rights has “…filed a host of new lawsuits last year and will do so again before the state legislative year is up.” Ms. Northup explained:
Media pundits are stoking the anxiety by painting pro-choice litigators as gun shy. Slate’s Dahlia Lithwick recently wrote a piece suggesting that the pro-choice movement won’t challenge the new abortion restrictions for fear of losing in the Supreme Court. She writes that the Court’s 2007 decision to uphold the so-called “partial birth” abortion act has “frightened those who are pro-abortion rights into being grateful for what they have.” She then asks, “Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical?” Rachel Maddow also aired a segment that delivered a similar message, concluding that so many of the anti-abortion bills that are blatantly unconstitutional have gone unchallenged because the pro-choice movement has “apparently so far made the calculated decision to let it slide” in order to protect Roe v. Wade from being overturned.
Moreover, Ms. Kolbert believes that Justice Kennedy may be willing to undermine or cut back on his decision in Planned Parenthood v. Casey, now that Justice Sandra Day O’Connor has left the Court. Ms. Kolbert believes that one of the key reasons Planned Parenthood v. Casey developed into an unexpected victory was because of the considerable influence of Justice O’Connor. She questions whether Justices Elena Kagan or Sonia Sotomayor have the same degree of influence within the current Supreme Court. Certainly, Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas are more than willing to uphold virtually any abortion restrictions that are presented to the Court.
Ms. Kolbert and Ms. Northup both agree that the current makeup of the Supreme Court demands strategic decision making when it comes to what laws to challenge and when to challenge those laws. Ms. Northup said, “[w]e don’t jump just because the anti-choice zealots say jump. We won’t be baited into a lawsuit. If a state passes a law that impairs women’s access to abortion services, and that fails to meet constitutional standards, it will be challenged -- when the circumstances and timing are right.”
And when addressing the specific issue of the 20 week abortion bans, both Ms. Kolbert and Ms. Northup agree that risking legal challenges to these laws is a lesser priority because these bans affect or regulate a “…small number of procedures that occur later in the pregnancy.” In fact, “…abortions performed after 20 weeks are exceedingly rare. Only 23 percent of abortion providers even offer them; the Centers for Disease Control and Prevention reports that just 1.4 percent of abortions occur at 21 weeks or beyond.”
Ms. Northup explained "[w]e're focused on pursuing cases that ensure that women have access to all abortion services. They're trying to move the agenda to a small percentage of cases, but we're not fighting on their turf." Nevertheless, “…abortion-rights advocates tell Mother Jones they do intend to fight the 20-week bans—they're just waiting for the right test case. Janet Crepps, the deputy director for the U.S. legal program at the Center for Reproductive Rights, agrees and stated, "I think they are really trying to bait us into rushing into court…We'll go when we're ready. We're not going to go just because they want us to."
Finally, Ms. Kolbert and I discussed the feeling by some in the pro-choice community that President Obama, although surrounded by strong pro-choice advocates within his administration, has himself been reluctant to take a firm and unequivocal stand in support of abortion rights. Notably, that the compromise with anti-choice politicians to reinforce the Hyde Amendment within the Affordable Care Act (ACA) was not really much of a political sacrifice for President Obama at all. And certainly the fight over the Hyde Amendment was never worth risking the President’s arduous battle over his signature and defining legislative achievement.
Moreover, ACA has also opened the door to further restrictions in insurance coverage for abortion services. The National Women’s Law Center reports that “[e]leven states…have enacted laws prohibiting insurance coverage of abortion in state exchanges. Five of those states…go even further and reach all plans in the state, banning insurance coverage of abortion in plans outside the exchange as well.” And since ACA “…explicitly allows states to pass laws banning private insurance coverage of abortion in any exchange set up in their state,” this problem will only get worse over time until it becomes too burdensome for any insurance carrier to offer abortion coverage. We will eventually see all women – low-income and middle income, being deprived of basic access to abortion care services. ACA may turn out to be the precise vehicle by which anti-choice state legislatures completely extinguish insurance coverage for abortion services in this country.
Conscience magazine, published by Catholics for Choice, recently “…asked leading authors to provide a comprehensive analysis of President Barack Obama’s prochoice record. Many in the progressive reproductive rights and women’s rights field have whispered it, some have murmured it, but Conscience has finally broken the silence about the administration’s abysmal failure to take action on choice issues.”
Open and honest discussions about these political realities, particularly the issues facing the Obama administration in the 2012 election cycle, and challenges presented by the current makeup of the U.S. Supreme Court, must become integral components of the all hands on deck strategy and the dialogue that is needed to combat the ongoing war on choice that is spreading throughout the country.
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